from the oops dept

You may recall EMI / Capitol Records ongoing lawsuit against MP3Tunes and its founder/CEO Michael Robertson. The initial ruling in that case went almost entirely against EMI, with one small exception that we'll get to soon. EMI asked the court to reconsider the ruling, claiming that it had made some mistakes, but the court slammed EMI for some questionable behavior, including taking a number of quotes completely out of context as an attempt to mislead the court. The latest on that case is that following the appeals court ruling in the YouTube/Viacom case that sent that case back to the lower court, EMI pretended that the ruling changed everything and required a new ruling. The two sides are currently filing motions back and forth over that, with MP3Tunes pointing out that nothing in that ruling actually changes anything, and EMI claiming otherwise. Given the narrow aspects of the Viacom ruling, I think that EMI is still unlikely to get very far. Still, it's fairly amazing how much time, money and effort it has spent on this case, even as the company itself got into serious trouble and was sold off in, effectively, a fire sale.

Which then brings us to the other aspect of the case. The one area in which EMI "prevailed" in the original case was in the part they filed against Robertson personally. The court had ruled on summary judgment that Robertson was liable directly for 47 songs that he had personally "sideloaded" into MP3Tunes. However, even that part of the case was strange. Initially, EMI had claimed that it had never, ever, ever authorized any MP3s to be given out for free for promotional purposes. In response, Robertson crowdsourced examples of over 1,400 cases where EMI was clearly giving away MP3s for free. However, the court still ruled that he was liable.

In the latest filing about that, Robertson hits back on a number of points, starting with the fact that the court ruled on summary judgment on the issue, even though EMI and Robertson had already agreed that the summary judgment part of the dispute wouldn't cover Robertson's personal liability. Because of that, he didn't present the full argument for why he shouldn't be liable, and thus he's asking that the court allow that part to go to trial in order to show that the evidence of his own infringement is lacking.

In order to support that, Robertson's filing demonstrates a few important things. First, it shows a bunch of evidence that EMI purposefully and deliberately marketed its music to various sites asking them to give away MP3s and even to share the music widely. Second, it shows that, despite being asked for this info during discovery, EMI did not provide it. Instead, Robertson got it later from other sources. This is a big no-no, and EMI may run into some issues for failing to hand over the required information during discovery. Still, what the filing shows is that EMI regularly and frequently hired companies to distribute MP3s for free, and encouraged them to be put up on various websites and shared widely. And this includes some of the songs that Robertson is accused of infringing and some of the sites he's accused of downloading the songs from.

Reading pages five through nine in the motion he filed demonstrates this over and over again, including in an email from an EMI Publishing employee, who not only is planning a promotional download but says part of the plan is to "encourage as many third party online zines, podcasts, blogs, major web portals to host the MP3 for free download on their site." Here's just a snippet of some of the examples Robertson turned up of EMI using free MP3s in marketing (which they did not properly disclose):

For example, Definitive Jux (an EMI label) entered into an agreement with viral
marketing firm, Better Propaganda, which granted Better Propaganda the right "to use, copy,
distribute, display and perform [a specified song] on and through the Internet and the World
Wide Web..."). This song remains available on the Better
Propaganda site. Plaintiffs did not produce this document....

Similarly, Astralwerks (another EMI label) engaged Toolshed, Inc. ("Toolshed"), a Viral
marketing firm, to distribute sound recordings pursuant to a marketing program by which
Toolshed would virally distribute free MP3 downloads through various blogs and Toolshed's
own website. Importantly, Toolshed's webpage for downloads notes clearly that "All songs
. . . are pre-licensed for use on your site. Simply browse, find music you like, and copy it to
your page." .... Toolshed has done projects for
numerous labels, including EMI labels Astralwerks, Capitol Records, Caroline Records and
Definitive Jux Toolshed distributed free MP3s for numerous of Plaintiffs' artists --
including Air, Willy Mason, Bat for Lashes, Pacificl, Carbon/Silicon, The Perceptionists, and
Amos Lee -- including one of the same artists that Robertson is accused of wrongfully
sideloading.... Plaintiffs
did not produce documents they exchanged with Toolshed relating to those projects.

One project by Toolshed is especially important: as emails (dated March 5, 2007)
provided to Robertson from Toolshed indicate, Astralwerks paid Toolshed to get websites to give
away MP3s for the new release of the album "Pocket Symphony" by Air, to be released on
March 6, 2007.... Toolshed achieved coverage, including free downloads
of a track and/or video placement, with numerous sites, including 3HiVe, Donewaiting, Kevchino, Music for Kids Who Can't Read Good, Muzzle of Bees, PopMatters, Sixeyes, Stereogum, Antville, and Kingbline..., some of the same sites and the same artist from which Robertson is accused of wrongfully downloading Plaintiffs' songs and which Plaintiffs have alleged are unauthorized sources of MP3's.... Plaintiffs did not produce such documents.

In many ways, this is reminiscent of the whole Dajaz1 situation, in which the lawyers are insisting that the distribution on various blogs is infringing, at the very same time that their marketing people are begging those same sites to offer up the songs as a promotion.

Separate from all of this, but in the same filing, Robertson hits back on the claims that the use of cover art in MP3Tunes infringed. The filing notes that MP3Tunes had licensed all the cover art from Amazon and that EMI never even bother to show that it held the copyright in the cover art. All they showed was that the company had copyrights in the songs, but that's different from the cover art (and made more complicated by the fact that the copyright in the cover art might belong to the artists who created the art, rather than EMI).

All in all, the filing reinforces what's already come out in the earlier rulings: which is that EMI seems to have an incredibly weak case here, but due to what appears to be a random infatuation with going after Robertson personally, is just throwing everything it can at him.

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First, it shows a bunch of evidence that EMI purposefully and deliberately marketed its music to various sites asking them to give away MP3s and even to share the music widely. Second, it shows that, despite being asked for this info during discovery, EMI did not provide it. Instead, Robertson got it later from other sources. ... what the filing shows is that EMI regularly and frequently hired companies to distribute MP3s for free, and encouraged them to be put up on various websites and shared widely. And this includes some of the songs that Robertson is accused of infringing and some of the sites he's accused of downloading the songs from.

Reading pages five through nine in the motion he filed demonstrates this over and over again, including in an email from an EMI Publishing employee, who not only is planning a promotional download but says part of the plan is to "encourage as many third party online zines, podcasts, blogs, major web portals to host the MP3 for free donwnload on their site."

They hired promotional companies to do everything they can to get the MP3 up for free on as any third party online zines, podcasts, blogs and major web portals as possible. You know how promo companies operate, right? They would have sent the song out to long lists of people who operate music sites, and general influencers, and encouraged them to share the song as widely as possible, put it up on their sites, offer it for download, and do everything they can to get it exposure.

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uh, ok, but what about all of the music that they DID NOT hire promotional companies to distribute... uh, how about THAT consent... hmmmm... so you find a needle in a haystack and want a pat on the back, it happens, but so what - now what... one isolated example does not make a case.

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Yes, it's possible (even likely) that some of the tracks were distributed without consent. In no way am I claiming that this automatically proves that no infringement happened.

However, it sure paints a different picture than the one EMI tried to paint, doesn't it? For one thing, they explicitly told the court that they had never authorized any MP3s for free download, and even withheld documents during discovery to make that point.

That was a lie.

Moreover, it has been shown that at least some of the 47 songs at issue here were part of such consensual promotional programs. But EMI sued over them anyway, apparently making no effort to check if they had authorized the use. That's copyfraud, and good reason to put extra scrutiny on their other claims.

Moreover still, since EMI hid this information from the court, there is plenty of reason to believe that even more of these songs may have been authorized -- after all, this is just what Robertson was able to find, and we have proof that EMI was not being honest, which is reason to believe that they may still not be.

Finally, this has significant implications beyond just this case: copyright holders, groups like RIAA & MPAA, and supporters of SOPA, have all repeatedly stated that identifying infringing content is easy and that filtering it presents zero danger to free speech. And yet we now have a long list of examples, this just being the latest, of copyright holders being unable to correctly identify infringements of their own material, and bringing lawsuits that would shut down fully authorized, legal speech. I would say that counts as unequivocal proof that copyright enforcement is a danger to freedom of expression.

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No, once the toothpaste is out of the tube, you can't put it back in.

You can't distribute something for free for the purpose of wide distribution and then come back after the fact and say, "we didn't mean for that to be given away to those people. When you distribute for free, it's not just free as in beer, it's free as in speech. It's out there and there's no going back.

That's like leaving candy at a playground then later claiming you didn't intend for children to find and eat it.

If you want to retain your choice, don't distribute it at all. That's the only power you have in its distribution.

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I apparently missed the part where after saying. "All songs . . . are pre-licensed for use on your site. Simply browse, find music you like, and copy it to your page." They also said, "Unless you happen to be Michael Robertson".

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I'd say it's darryl based on the grammar and punctuation. Or lack thereof, or better said lack thereof of proper grammar and punctuation usage.

Darryl's the only person who doesn't believe in starting off sentences with capital letters.

He also comes off as rather snobby. And by that I mean when you read any of his responses it's like he's trying to tell you what's what and that's it. There's no differentiation (to hell with the facts and evidence to the contrary) from how darryl says things are.

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What EMI have done is via themselves or third parties set up what are legally called implied licenses, they might not like it, they might try to stop them (though after the fact makes their argument moot) but by the simple evidence of prior usage and sending of these mp3's to world viewable and non authenticated downloading/streaming they have no legal leg to stand on.

Consent has nothing to do with this, the consent in fact has already been given contractually by EMI whether they like it or not.

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labels have always given away free music, and long before there was an internet. but the labels (and artists) had consent about how much, to who, and what they got in return for it.

No, they thought they could control what happened once they gave it away, but the courts smacked them down. It was just last year, and TechDirt did report on it, that the 9th Circuit appeals court declared selling promotional CDs to be 100% legal.

They certainly don't get to control digital Mp3s that they deliberately try to get plastered all over 3rd party websites more than they can control promotional CDs! Freely redistributable means it's freely redistributable.

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"yes, it's called consent. EMI get's to decide who it gives its property to, and who it does not. "

I agree. Almost all so-called "illegal" downloads fall into this category because the file is being shared by its owner. In these cases, rightsholders use an odd interpretation of an obscure, minor law to try to usurp these property rights.

More to the point, in this case, EMI gave away some music, then falsely claimed it didn't.

The power of free is not in any way tied to the power of choice. Never. Not even in supermarkets where they give away free samples. That's not how marketing works.

"labels have always given away free music, and long before there was an internet. but the labels (and artists) had consent about how much,"

True.

"to who,"

False. This isn't even possible. You send 'em out and whoever gets them, gets them. The goodwill inspired by your free for all is the power of free.

Was Robertson explicitly authorized?

I agree as above that EMI should have total control of WHO is authorized, SO if the sticking point is: "are pre-licensed for use on your site", and Robertson wasn't explicitly authorized, then HMM on the consent.

If EMI wanted to keep Robertson out of its goodies, then it's basis for the suit. A warning would be good, but requirement for explicit invitation is nearly same. A history of it being made clear that EMI doesn't like Robertson is indicative. -- But in sum, I don't say it's overwhelming as publicly giving out MP3s clearly loses a great degree of control.

Clear up that point, Mike. It's really the essential one and so of course you left it out! -- While giving us scads of mostly useless legal details.

Re: Was Robertson explicitly authorized?

Was Robertson explicitly excluded?

"I agree as above that EMI should have total control of WHO is authorized, SO if the sticking point is: "are pre-licensed for use on your site", and Robertson wasn't explicitly authorized, then HMM on the consent."

Re: Was Robertson explicitly authorized?

It would depend on how EMI set up the licences and how they were distributed to various music sites/blogs. However, if they want to control WHO gets host the MP3's then they should have specifically stated so when deistributing these MP3's. By not doing so, they shot themselves in the foot as it were.

Re: Was Robertson explicitly authorized?

What?? So by that logic, every person who downloaded or streamed the music in question needed to be explicitly authorized by EMI? Why, then if that's such a valid argument, did EMI violate rules of discovery and omit those tidbits of informaton about how the music was beind promoted and distributed?

Let's talk about the legal concept of intent as it pertains to civil matters.

It's safe to say that EMI's INTENT was to make the songs as widely available as possible (re-read the paragaph that mentions Toolshed in case you disagree). It's eqully safe to say it was EMI's INTENT not to disclose any of this in order to press their lawsuit - and clearly was their INTENT to be deceptive about it.

I was hoping that this Christmas someone had bought you that radon gas detector for your residence...clearly not.

what is frustrating is the fact that EMI were 'allowed' to get away with not disclosing everything they should have in the time frame and that, even though EMI were basically shown to be the 'at fault' party, the court still had to rule against Michael Robertson on something. in other words, regardless of the amount of evidence on hand that p[roves the guilt of the 'labels', the individual will still be found guilty on next to no evidence at all or because of the evidence of 'non-infringement' not being required at that time. the courts seem to just have to convict people of doing something against the entertainment industries, even when nothing has been done against them!

This is not a lot different than the confiscation of the DaJaz1 site. ICE confiscates the site on the word of the RIAA only to find the owner of the site had email authorization to distribute on the site. End result of 1 1/2 years of holding the domain was the forced return of the domain to Dajaz1 by the court.

The left hand doesn't want to know what the right hand does. It's too much trouble to keep track of where the promoters are going by those attempting to track infringement.

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Geeze I wish I had an edit button.
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This shoots a big hole in the idea that internet surfers and companies should magically somehow just know what is infringing and what is not. If the companies that own these works for hire can't tell, then there is no reasonable expectation that the average user would.

funny thing is, if free is such a good idea why aren't more creators surrendering their rights voluntarily? I mean, why do you need to "reform copyright" when so many people are making so much great stuff and giving it away for free?

why is there such a need to take what is not given, when there is so much given away freely? Hmmmm...

Free Culture's Epic Fail is that if you guys were right, there would be no need to discuss Copyright because very simply, no one would find the need to actually use it...

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There can be no doubt that there is more legal free music available today than ever before, with LOTS of authorized free sources coming straight from labels and artists.

So yes, your point is quite valid: more artists choosing to give stuff a way for free would validate the idea that free is good. And that's exactly what's happening.

In any case, I take it from your statement that you support switching copyright to an opt-in system, right? Or at least a simple, official way to opt out, right? You say this is all about choice -- why is copyright automatic and very difficult to surrender?

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" why is copyright automatic and very difficult to surrender?"

I thought creative commons was easy to use? And creative commons is non-revokable. So it seems just that easy. Nothing complex about it. Also, it's as easy to surrender copyright as saying - I surrender all copyright in this... done.

but again, it doesn't really matter if so many creators are making so much great stuff and giving it away for free. Shouldn't you be making friends of creators by showing them how the benefit without copyright? Seems very few of any consequence are listening... Hmmmmm....

Again seems like a lot of fight for something that doesn't matter? Why is it so hard to convince artists to surrender their rights if it's so good for them to do so?

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It is politics and business models. That is all it is. Copyright is, however, a good thing if it has appropriate and easily visible limitations.

The problem is that any use on the internet will go into so many jurisdictions that the special exemptions from copyright do not count so you are essentially making it impossible to actually use any such exemption or forcing you to distribute only inside your own little fictional "territorial internet". New international legislation is needed to assure forced ways to protect exemptions!

Because of this clusterfuck of legislation or lack of consumer protection most people do something illegal on the internet at times since copyright essentially has no exemptions. Many new producers made a good splash with Youtube premium and that is a good way to monetise free but copyright protected material. A new business model is on the rise! Cooperate outside the "creative industries" and get rewarded!

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If EMI is proven to have willfully withheld information during that part of the trial, the ruling should be appealed or vacated.

It is kind of insane that they would turn around and sue someone based on promoting songs that they themselves had paid a 3rd party to promote using viral marketing. I wish that the judge could just throw the whole thing out and tell EMI to grow up and quit acting like a toddler.

Must suck to be marketer

It occurred to me that it must be terribly depressing to be a marketer at any of the big labels right now. You put all this effort, often putting your own reputation on the line to try and get these things heard and popular, then a lawyer from your own company comes and sues the people (or related people) that you were asking to market the song.

It must hurt your reputation every time it happens as all people will remember is that a colleague (of sorts) was sued when they did what you asked.

Real issue is the discovery failure

It appears EMI failed to produce directly relevant documents in discovery. And those documents revealed that at least some of the songs at issue were released for wide distribution at no cost and essentially no limitations as part of a promotional issue.

There might be an argument that the documents don't say exactly that. That argument could have been made if the documents had been produced in a timely manner. But not after the plaintiff failed to produce them. They should be interpreted as adverse to the party that failed to produce, and perhaps in the most adverse way.

Without knowing the actual details, this raises reasonable doubt about all of the songs. If some were released for free as promotional material, and EMI sought to conceal that fact to the court, the burden should shift to the plaintiff to prove that not all were released, and the defendant could and should have known which specific songs had never been released as per-licensed promotional copies.